Community mediation: From the perspective of Penang’s Justices of the Peace

This paper on our blogsite was published in The Edge,
Dec 6, 2021, with minimal editorial changes.

By Ong Seng Huat

MEDIATION as a means to resolve disputes is not new. It has been practised in the ancient Greek and Roman civilisations. It was also commonly employed in India, China and neighbouring Japan and Korea. Different words had been used to describe the practice and, in each area, local beliefs have had an influence on how it was carried out. In the East Asian region, for example, Confucianism had a strong influence. 

Mediation was being used to resolve disputes in Peninsular Malaya prior to the introduction of laws and the judicial system by the British in 1807. Indeed, the Malays, Chinese and Indians who resided here have been practising it since at least the 15th century.

The Malays used sulh (which in Arabic means “end of arguments or compromise”, translated as “conciliation”). The mediators were local chiefs (imam, penghulu and ketua kampung), administrators of specific areas or jurisdictions. They were appointed by the local people and endorsed by the Sultan. 

Panchayat, practised by the Indians, centred around a village council of elders (usually numbering five) who were acknowledged by the community as a governing body. Brought from India, the system facilitated decision-making with regard to the social issues confronted by the villagers. 

As for the Chinese, tiaojie (调节), which literally means mediation, was the primary mode of dispute settlement adopted by the early settlers. Used for thousands of years in traditional China, its theory and practice had been influenced by the Confucian philosophy. It was recorded in Malaya, for example, that a temple, EngChoonTohTeoGan in Malacca (1949), included mediation processes in its rules and regulations.

Justices of the Peace in colonial Penang: The office of the Justices of the Peace (JP) was a British creation. Eminent persons of communities were appointed as JPs to assist the Crown in the preservation and maintenance of peace of their communities. In Penang, a Straits Settlements state (1826-1948) under the British administration prior to Independence, JPs were appointed to mitigate the shortage of magistrates then. In addition to their statutory roles, the JPs then also acted as mediators in community conflicts and disputes. 

RECENT DEVELOPMENTS IN MEDIATION IN MALAYSIA

Mediation has assumed some prominence in Malaysia of late. It is in this light that I would like to discuss the practice. The following are some recent milestone events:

Community mediation: This “alternative dispute resolution” practice was initiated formally by the Department of National Unity and Integration (DNUI) in 2007. The DNUI was previously under the auspices of the Prime Minister’s Department, as a mode to help residents of geographical communities (neighbourhoods) to amicably and promptly settle their differences and disputes. Apart from preventing conflict, it also aimed to foster better inter-ethnic and intra-ethnic relations. Since then, the DNUI has been training “community mediators” to serve their respective Rukun Tetangga (RT) sectors throughout the country.

Rukun Tetangga (RT) Act 2012: This Act underscores the role of the “community mediator”. Section 8 stipulates that RT sector committees are “to provide community mediation for the purpose of conciliation or otherwise settle any dispute or difference amongst the members of community”, that is, within their neighbourhoods.

Mediation Act 2012: This piece of legislation was enacted as “an Act to promote and encourage mediation as a method of alternative dispute resolution by providing for the process of mediation, thereby facilitating the parties in disputes to settle disputes in a fair, speedy, and cost-effective manner and to provide for related matters”. It governs the conduct of mediation in Malaysia, particularly ad hoc mediation whereby parties to a civil or commercial dispute voluntarily submit their dispute to be mediated without or prior to commencing litigation in court. 

Practice Direction on Mediation 4/2016: This “practice direction”, issued by the Chief Registrar of the Federal Court, was aimed at encouraging disputing parties to choose pre-action mediation or to seek amicable settlement before trial or appeal. By this Direction, the courts may now also refer the disputing parties to appoint a mediator or mediators to undertake court annexed mediation as directed by the judge or magistrate during pre-trial civil case management. As per Paragraph 5, the modes of mediation could be conducted (a) with the judge leading it (b) via the Kuala Lumpur Regional Centre for Arbitration (KLRCA) or (c) via other mediators agreeable by both parties. Mode 5(c) is categorised as other mediation institutions or ad hoc community mediation.

Covid19 Act 2020: The proviso in Section 9 mirrored the procedure laid out in the Mediation Act 2012 (MA 2012). It states that “any dispute in respect of any inability of any party or parties to perform any contractual obligation arising from any of the categories of contracts specified in the Schedule to this Part due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 to control or prevent the spread of Covid-19 may be settled by way of mediation”.

Covid19 Mediation Centre: The subsequent creation of the “Covid19 Mediation Centre” reaffirms the government’s commitment to not only acknowledge the benefits of mediation but also assist the affected parties, particularly the lower income groups to resolve their disputes amicably, speedily and cost effectively. A timely test now is to gauge if there are sufficient trained mediators to undertake the unprecedented tasks. Though the Covid19 Bill 2020 is independent of the MA 2012, disputants are free to decide on their preferred mediation option via MA 2012. In this instance the JP Council community mediators are prepared and will avail themselves for national service when called upon.

With these new developments, mediation in Malaysia is no longer interpreted as an informal alternative dispute resolution process that is not binding by law. It is now enshrined as one of the processes of dispute resolutions in the Malaysian legal system.

COUNCIL OF THE JUSTICES OF THE PEACE, STATE OF PENANG

The Council of the Justices of the Peace, State of Penang, was established in 1962 to provide a platform for Penang JPs to coordinate and pool their resources to serve the local community more effectively. It is a registered entity with the Registrar of Societies. With no new appointment since 1990, the membership stands at 60 comprising eminent community leaders including retired senior civil servants, industrialists, merchants, accountants, medical doctors, surveyors, planters, corporate directors and other trade practitioners.

Transformation of council into a mediation institution: Due to changes in certain statutes after Independence, the role of JPs in Penang has been greatly diminished. Although Sections 98 and 99 of the Subordinate Courts Act 1948 allowed for the appointment of JPs as “second class” magistrates, no JP has thus far been given the position. Recent developments in mediation, however, have raised the possibility of re-engaging these community leaders, appointed by the state authorities, to act as mediators to resolve community disputes. They are ideal for the role.

Penang JPs have been involved in mediation since the 19th century. One notable example was Foo Tye Sin JP who acted as mediator in local community conflicts and disputes during British rule. 

Some time in 2014, the JP Council received a paper entitled: “Transformation of the institution of Justices of the Peace of Penang” from High Court judge Yang Arif Dato’ Lim Chong Fong, then an advocate and solicitor in private practice. Inspired by the ideas outlined and convinced after meeting the writer in person, the council, at its 2016 annual general meeting, resolved to transform the office of the JP to include mediators. This is besides continuing with its limited statutory roles and functions. Consequently, the council’s constitution was amended to include mediation as one of its objectives. As a mediation institution, JP mediators can be appointed as ad hoc mediators pursuant to Part III of the MA 2012.

Mediation skills course: Pursuant to Section 7(2)(a), MA 2012, a mediator shall “possess the relevant qualifications, special knowledge or experience in mediation through training or formal education”. To secure recognition, competency and practical experience for its members, the council approached Ir Harbans Singh (currently panelist of the Asian International Arbitration Centre or AIAC).  He in turn pitched the council’s proposal to the then Director of Kuala Lumpur Regional Centre for Arbitration (KLRCA), Datuk Sundra Rajoo, for support and endorsement. KLRCA has been renamed AIAC. The first JP-KLRCA (AIAC) mediation skills course was held in August 2016. Our collaboration with AIAC to train community mediators continues to this day.

COMMUNITY-BASED PHILOSOPHY

In line with a broad community-based approach, trainees for community mediators are both JPs and non-JP community leaders from diverse background including those from sectors like medical, legal, engineering, construction, finance, trade, commerce and other industries. Apart from the ad hoc mediation, two JP mediators have also served in the Penang High Court annexed mediation in 2016. 

Mediation Bureau: As the mediation service involves non-JP mediators, the council established a bureau to allow it to be semi-autonomously managed. With the tacit support of the state government, the Mediation Bureau was officially launched by His Excellency, the Governor of the state of Penang, Tun Dato’ Seri Utama (Dr) Haji Abdul Rahman Bin Haji Abbas, on 20 July 2017. The bureau has a rented office located at the Caring Society Complex and has a panel consisting 25 JP and non-JP mediators (local community leaders) representing different strata of the community. Currently, the bureau provides pro bono pre-action mediation services to the local community. Pursuant to Court Practice Direction 4/2016 paragraph 5c, the council has offered to assist the courts in alleviating the burden of pending cases, particularly those related to community disputes.

Community mediation and social harmony: Community mediation serves as an important means to keep a community harmonious. They do so by resolving conflicts or disputes — no matter how petty — speedily before they develop into full-blown cases that eventually ended up in the courts. By having mediators within these communities, we are also empowering their leaders to manage their interests and well-being from within, apart from maintaining peace. Further, the JP Council’s idea of engaging local community leaders means that the people involved in the mediation processes are familiar with other on-the-ground issues that may help or hinder conflict resolution. 

MOVING FORWARD

We are grateful to all the directors, past and present, of AIAC for their encouragement and support to train community mediators in Penang. The endorsement provided not only the necessary knowledge and skills but also a mark of recognition of their competency as mediators. Unfortunately, due to the pandemic and its related restrictions, the last scheduled training was aborted. Nevertheless, we look forward to bring the collaboration to the next level.

Community mediation symposium: An understanding with the state Department of National Unity and Integration Department (DNUI) to collaborate and share resources to serve the local community was established in 2019. With the DNUI endorsement, the JP Council successfully hosted a community mediation symposium on 10 November 2019. It was unfortunate that due to the pandemic, the scheduled MOU on 5 April 2020 was deferred. 

Road map for promotion: In reaching out to the community at large, we have created a road map to promote, educate and disseminate the benefits of mediation within their own respective communities. Our first collaborator in this road map is Min Sin Seah, a century old local socio-educational organisation.

Accessible and affordable training module: Work is currently in progress with an institution of higher learning to design and develop a training module to make learning both easily accessible and affordable. Meanwhile, we are prepared to work with other interest groups or organisations for mutual benefits and professional advancement.

One-stop centre: In addition, we are striving to establish a state-level one-stop dispute resolution centre with the state government’s participation and support. 

In sum, this low-cost and effective assisted negotiation between two disputing parties with the help of a neutral third party, is here to stay. It should be given much greater prominence to create greater social harmony and more empowerment to the community, especially its leaders.   

• Dato’ Ong Seng Huat JP is Honorary Secretary, Council of Justices of the Peace, State of Penang. Read more about him here.

MySay: Wish list for a more comprehensive environment for social work

This article appeared in The Edge Malaysia
of Nov 11, 2019. Read here.

By Jim Lim Teik Wah 

SOCIAL WORK is an acknowledged activity of potential professional standing besides it being a study-subject of widespread academic interest. Its close relation “social care” is a broader and more generic activity representing a major lifeline for many. Both are mainstream occupational undertakings by practitioners and formal and informal care-givers, care workers, support workers, to name some common titles used elsewhere although social work is the more sophisticated form. 

Their standing as a profession has not grabbed headlines as such, nor interest amongst the Malaysian rakyat or its major news media. For reasons not unsurprising, many are either unaware of what the professional activity (social work and social care) encapsulates – beyond general altruistic intent and interventions for and on behalf of individuals and families.

The campaigns over the years to advance social work as a practice-led profession, suitably “fit for purpose”, present to us an opportunity to significantly improve lives and protect the vulnerable. The social work fraternity collectively must redouble its efforts to promote its activities to increase public education and recognition, not forgetting the vital role social care plays too. 

It is with great excitement and relief that I hear that “social work” will soon become a recognised profession following plans to table laws to upgrade the status of social workers. The Women, Family and Community Development Minister, Datuk Seri Dr Wan Azizah Wan Ismail said on October 9 in Parliament, the move is aimed at improving efficiency in case management of targeted groups while ensuring adequate qualified social workers for the country. 

“The ministry is taking several steps to ensure that the Welfare Department will change its focus on social worker’s job scope so that they will conduct case management for the targeted groups. Among the changes is the introduction of the Social Workers Profession Act, which is expected to be tabled in the Dewan Rakyat in December this year (2019).”

The recent budget 2020 does not allocate any specific funds towards the development of social work. There are, however, related themes towards creating inclusive and a more equitable society and general measures to address low wage, to raise income benefits for specified groups, to increase maternity leave and to improve access to housing. 

In the light of this much awaited proposed legislation, the following is an illustration of the impact of the profession on the lives of the most vulnerable in our society. In other words, it is my “wish list” for a more comprehensive environment where social work is weaved meaningfully, usefully and inextricably, as it should, into various areas of need:  

Child protection: The social work role in this area is enormous and significant – social workers would primarily be involved in assessments for eligibility for help and services, and they would be the front-line of child protection activity leading the prosecution, when working closely with enforcement agencies such as the police.

Courts dealing with children can also rely on reports from social workers and in many developed countries, social workers are regularly appointed as guardians’ ad litem to assist the courts in the determination of the child’s welfare and future. This happens, for example, in cases involving matrimonial disputes, in fostering and adoption cases. Social workers are often approached for their assessment with families, ranging from sentencing and disposal cases with offending juveniles to complex decisions on wardships (in the higher courts). They underpin the principle that the interest and welfare of the child is paramount.

Social workers would also intervene directly, with judicial powers to remove children from family households where the children’s safety and welfare appears compromised. They would seek suitable substitute families for abandoned babies, work with neglected children and assist those in long-term children’s homes in promoting their life chances. 

Care for the children with disabilities: The social work task here is primarily to assess, support and enable care-givers and families to obtain assistance and respite in their care tasks. The government intervenes only to lessen the burden, not to assume care, unlike cases of child neglect and abuse where governmental bodies may assume parental duties or loco parentis. 

In some instances, the professional social work task of assessment will end with the assignment of a care worker (care-giver) to assist the family coping with the severely disabled child as part of a time-limited support plan.

Women: Social workers are common in this area of activity because women play a vital and yet often “taken-for-granted” primary role in families with regards to safeguarding, protection and nurturing. The social work task would be offering advice and support, including assistance in prosecution in domestic violence cases and in measures to uphold both the children’s welfare and the interest of the main care-giver. 

Social workers and care workers may work from community advice centres, women’s aid shelters and community homes to support the victims and their dependents.

Adults with disabilities, including HIV/Aids and drug dependency:  Social workers will be “case managers” in this field to ensure that support, treatment and care is effectively targeted, followed-up and monitored, as current legislation provides. There is scope for joint approaches including shared supported housing placements in order for a streamlined service (including health and welfare services). Social workers in community-based drug rehabilitation centres as well as NGOs would perform outreach work as well as in public education. Many day-care staff or support workers would also perform duties which overlap the social work task.

Mental health: Social workers are a major occupational stakeholder in mental health. In developed countries, they hold powers which can over-ride an individual’s civil rights through involuntary admissions to a place of safety, e.g. a hospital, for observation and treatment. They also work within the judicial process, in matters such as the protection of property and, safeguarding and protecting individuals and the public.

Social workers are considered part of a multi-disciplinary team in specialised psychiatric facilities, including direct involvement in therapeutic programmes alongside other paramedics such as occupational and speech therapists, to name a few. The social worker’s main tasks are to undertake assessments of the individual’s living conditions and family circumstances and contribute to the medical team in drawing up individual treatment plans.

In mental health services for children, social workers have a crucial role in providing the link between the medical and psychological staff and the patient/family. In developed countries, children and adolescent mental health services are common and often jointly provided by the government health and welfare ministries. 

Elderly: The social work role in the area of elderly support and care is again, enormous. Social workers often assist the medical team in providing social histories and provide on-going reports on rehabilitative treatment regimes. They can be pivotal in convincing elderly people on facing daily-living realities and in coping with the significant changes in their lives, including residential care and perhaps away from immediate family members. They can act independently to prevent forms of elder abuse, either within the family or outside, including matters related to inheritance and finance.

Crime and probation and after-care services: Suffice it to say that, within the constraints of this area, probation officers in my view are essentially social workers in a criminal justice setting. The social work aptitudes and skills share commonalities although “conservatively inclined” law makers would prefer to see probation officers move away from a social work welfare perspective and towards more of a criminal management one.

Working in partnership and inter-agency: As was referred to earlier, social workers play a key role in medical settings especially in severe terminally-ill cases or, where legal decisions rests on balancing risks as to complicated continuing care. Likewise, social workers are relied upon as a service to the courts and protection tribunals. In adoption panels, the social worker’s recommendations are part of the essential prerequisites for a successful permanent placement decision. Social workers are often also integral members of multi-agency disaster relief teams. 

In many Western countries inter-agency working is the norm. Their joint activities range from basic information sharing to joint planning at the strategic organisational level. This is the established modus operandi in child protection work, i.e. social work, police, schools and health personnel work in tandem. There is considerable overlap in services among different departments and breaking down any barrier among them can only be positive for the consumer or service user. 

• Jim Lim Teik Wah is former Director of Social Services (UK), CEO of a London-based mental health charity, UK judiciary member on protection and regulation and in academia. He is a Fellow of the Institute of Directors (UK).  Retired now, Jim spends his time within his beloved Penang, UK and Italy. 
• Read more about him here.
• Word count: 1,440 words

Tribute to Soo Ewe Jin by a fellow journalist

This tribute is published in the above handbook. See notes below
for more information on the Soo Ewe Jin Scholarship Award.

By Lim Siang Jin 

EWE JIN had been a dear friend since 1979 when he joined The Malay Mail a few months after I did. We got on very well quickly even though a six-year age difference separated us. He was 20 and I, 26. Being similarly from Penang and Penang Free School helped to bolster the friendship that lasted 37 years.

A bit insecure then, but well-read, and full of ideas and initiative, he was quickly recognised as a strong potential to move up the ranks. His early skills as a writer and sub-editor had been honed at the now-defunct The Straits Echo. However, his interest in communications, journalism in particular, was a life-long one. Few children in our days, for example, read the newspapers every day. Few of us, on our own, developed an interest in current affairs. He did, and it showed in his work.    

We spoke a lot during those years at The Mail — about work, how to deal with life, and just about anything else that came to mind. His insecurity started to disappear later when he found the two rocks of his life: God and his wife, Angeline Lim. After Ewe Jin and Angie met, I observed a special glow in them and thought they had found a perfect match. Their faith in Christ became the bedrock upon which their lives together was built.

There were times, I thought, that the decisions Ewe Jin made could put them in financial straits. However, each time I advised him to take the path of greater “security”, he would tell me God would provide, and He did! What flowed from his faith to him and his family were gushes of abundance, not so much in material terms but the stuff of everyone’s life dreams — loving family[1] and friends, welcome acts of generosity and the reciprocity of others, respect and admiration as an example and mentor, very focussed missions in life, and a deep sense of reason and compassion.

I could always count on Ewe Jin for help at various stages of my own development: At The Malay Mail, I started to read his mannerisms. Whenever something was amiss, he would come over, with a face slightly twisted and a “tsk, tsk” at the tip of his tongue, to tell me or one of the other approachable seniors.[2]  After we revamped Malaysian Business from a monthly to a bimonthly in 1984, he was still at The Malay Mail. He would volunteer to sub and write part-time for us whenever we were short-handed — which was very often. The late Shaik Osman, the editor then, was very grateful for his help.  

This book is a compilation of
one of the best-read columns
in The Sunday Star. See Note [3]
below for more info.

In 1985, I decided to exit the NST Group and take up Dr Noordin Sopiee’s offer to join the publications unit of the Institute of Strategic and International Studies (ISIS) Malaysia. “Doc” favoured communicators in his team because they are trained to be doers as well as thinkers. 

As ISIS started to play a bigger part in national affairs, I thought Ewe Jin would be a great asset to our team. At ISIS, our publications team, at various times, included the late Salim Abdul Rahim Kajai (former editor of Berita Harian, fondly known as Pak Salim), the late Chew Lay See (former journalist from The Malay Mail) and Dorothy Teoh (from The Star who later became editor-in-chief of The Edge). Knowing the team he was to work with and the aspirations of the organisation, Ewe Jin decided to join us.

As expected, he injected news and human interest into our work, most notably interviewing celebrities who passed through ISIS. He spoke, for example, to Oscar-winning Killing Fields actor Haing S Ngor who was later shot dead in Los Angeles in 1996. 

Little known to others, during our ISIS days and in the early 1990s, Ewe Jin and I (with Tan Boon Kean on two occasions) were approached by people to initiate or revamp a number of publishing projects. One was to try to revive The Straits Echo. Another was to start a political weekly with the support of people like Tan Chee Khoon. The third was to start a business weekly. The first two didn’t get past a few meetings. The third resulted in the formation of The Edge.

In 1992, after I had left ISIS, Tong Kooi Ong wanted to start a weekly newspaper expressly to provide more information on the capital markets in Malaysia. This would help in their development. Three of us, Boon Kean, Ewe Jin and myself, were tasked to produce a concept paper. Boon Kean drew up the business plan while Ewe Jin and I worked on the editorial processes, production and design.

When the time came to present the paper, Ewe Jin, with a full-time job then, declined to join us. Ipso facto, he was not offered a directorship of The Edge Communications Sdn Bhd when we started. However, when the The Edge was launched in September 1994, I managed to persuade Angie and Ewe Jin to join us. He spent two years with us, and at the time he left, he was our Executive Editor.

Ewe Jin subsequently joined The Star. On reflection, it was one of his best moves. It was there that he managed to find his true calling — to be confidante of the likes of Wong Chun Wai and Wong Sulong, both of whom have high regard for him; to meet and cultivate the friendship of people of influence; to continue to counsel the younger journalists; and to write a column that would be widely-read and highly-impactful.[3] It was also The Star that provided for him not only in his early years there but also in his times of greatest need — throughout his entire journey with cancer.

To be struck with cancer at 40 was a big blow to him. On reflection again, and bearing in mind acutely the pain and suffering he and his family went through, I think his life’s mission was galvanised by this disease. It was his Cross to bear and he bore it with bravery without losing sight of the need to serve with compassion — setting an example for the rest of us on how to suffer yet cherish life; sharing his journey (via a book that was published six times)[4] so that others, sufferers and care-givers, can draw inspiration from it; and loving life for the small things it offers. It is the life of a true Christian.

• This tribute is published in “A handbook for recipients of the Soo Ewe Jin Scholarship Award”. According to The Star, April 7, 2017: “With [Angeline] Lim serving as benefactor, the Soo Ewe Jin (SEJ) Scholarship has been set up under the umbrella of the Star Education Fund and the Yayasan Universiti Sains Malaysia. It will sponsor one undergraduate every year pursuing a Bachelor in Communications (Journalism) degree at Universiti Sains Malaysia (USM), which is renowned for producing top-notch journalists. A Trust Deed for setting up the scholarship was signed by Star Media Group managing director and chief executive officer Datuk Seri Wong Chun Wai, USM Vice Chancellor Prof Datuk Dr Asma Ismail and Lim at Menara Star” on Friday, April 7, 2017.

[1] The Soos, Ewe Jin and Angie, are blessed with two children, Kevin and Timothy. Kevin, born 1987, is doing his doctoral studies at the University of Pittsburgh. He is married to Evelyn Yarzebinski. Tim, born 1990, has a Master of Arts from Macquarie University in Sydney. He works at an advertising agency in Kuala Lumpur.

[2] The approachable seniors included KC Boey (chief sub-editor then, who later became editor of The Malay Mail and Malaysian Business before leaving for Australia), Chua Bok Chye (assistant chief sub-editor) and Monica Moey (senior sub-editor). He was, at that time, terrified of The Mail’s fierce editor Chua Huck Cheng. They have since become quite close.

[3] His column, “Sunday Starters”, has been published in a book, Soo Ewe Jin: Sunday Starters: Reflections on Life, paperback, 360 pages, Star Media Group, 2015.

[4] Soo Ewe Jin & Angeline Lim: Face-to-face with cancer: Four journeys… God always present, paperback, 97 pages, published by the authors, 2012 (sixth edition). 12,000 copies of the book have been printed since April 1999, when Ewe Jin first discovered he had nasal cancer. In this difficult journey that took 17 years, he encountered the disease four times. First diagnosed and treated in 1999, he later found a malignant lump in his lymph nodes in 2006 and suffered from a relapse of nose cancer in March 2011. Ewe Jin’s final confrontation with the disease was in 2015-16. He passed away on November 17, 2016.

• Lim Siang Jin is one of three people who manage this WPS blogsite. Read more about him here.